Following a jury trial, Dwayne Williams was found guilty of felony murder and possession of a firearm by a convicted felon. He appealed and this Court affirmed. Williams v. State , 265 Ga. 681 461 SE2d 530 1995. Thereafter, Williams petitioned for a writ of habeas corpus, asserting ineffective assistance of appellate counsel. The habeas court granted the writ, finding that appellate counsel rendered ineffective assistance because she failed to enumerate error upon the giving of a sequential charge in violation of Edge v. State , 261 Ga. 865 414 SE2d 463 1992. The warden appeals and we affirm. The proper standard for evaluating the effectiveness of appellate counsel is set forth in Shorter v. Waters , 275 Ga. 581 571 SE2d 373 2002. See also Battles v. Chapman , 269 Ga. 702 506 SE2d 838 1998. Applying that standard, the ineffectiveness of trial counsel would be procedurally defaulted for purposes of habeas corpus relief unless Williams can meet his burden of showing that appellate counsel’s decision to forego that issue was an unreasonable tactical move which no competent attorney in the same situation would have made. See Shorter v. Waters , supra at 585; Battles v. Chapman , supra at 7051 a. “The reviewing court may not use hindsight to second-guess appellate counsel’s strategy and tactical choices. Cit.” Battles v. Chapman , supra at 704 1 a. To overcome the presumption that his appellate counsel was effective, Williams must prove that the failure to raise the issue of his trial lawyer’s effectiveness was a decision which “only an incompetent attorney would have adopted.” Shorter v. Waters , 275 Ga. at 585. See also Battles v. Chapman , supra at 705 1 a. State v. Smith , 276 Ga. 14, 16 573 SE2d 64 2002. The habeas court found that Williams’ appellate counsel was ineffective because 1 she ignored the sequential charge issue even though it was clearly stronger than the issues counsel presented on appeal; and 2 counsel’s decision was an unreasonable one which only an incompetent attorney would have made. Based on these findings, the habeas court concluded that Williams’ appellate counsel acted ineffectively and that counsel’s ineffectiveness deprived Williams of his substantive or procedural rights.
The warden takes issue with the habeas court’s findings, asserting appellate counsel was not ineffective because the trial court’s charge did not prevent the jury from giving full consideration to voluntary manslaughter as a lesser included offense. Simply put, the warden posits that the trial court’s charge did not violate Edge . In Edge , we adopted the “modified merger rule,” which provides that a felony murder conviction is precluded only where it would prevent an otherwise warranted verdict of voluntary manslaughter. 261 Ga. at 867. We disapproved the giving of sequential charges which instruct the jury to consider voluntary manslaughter only if they have considered and found the defendant not guilty of malice murder and felony murder because such instructions eliminate the jury’s full consideration of voluntary manslaughter and its concomitant evidence of passion or provocation. Id. See also Miner v. State , 268 Ga. 67 4 485 SE2d 456 1997; Lajara v. State , 263 Ga. 438 2 435 SE2d 600 1993. However, where it is shown that the jury considered voluntary manslaughter despite having been given improper sequential charges, the direction of a sequential consideration is not reversible error. Id. at 439-440 jury entered “not guilty” verdict on voluntary manslaughter charge and requested a recharge on voluntary manslaughter; Stewart v. State , 262 Ga. 894 4 426 SE2d 367 1993 jury requested additional instruction on the concepts of serious provocation, a reasonable interval for the return of reason, and menace. Likewise, giving sequential charges is not reversible error when the jury returns a guilty verdict on the malice murder charge because such a verdict requires the jury to have determined that the homicide was committed without provocation. McGill v. State , 263 Ga. 81 3 428 SE2d 341 1993. Harrison v. State , 268 Ga. 574, 575 2 492 SE2d 218 1997.
